Thursday, December 16, 2010

"Smiling Bob" Still In Jail, Despite Rights Violations

With all of the mainstream news media focusing on DADT, the Obama tax deal, the DREAM act and the START Treaty, there was one BIG story this week that you heard little or nothing at all about. This is a story you won't see covered on the network news. The Today Show wouldn't touch it with a ten-foot pole.

It's a story that has a little of bit of everything: government stepping on your rights, the internet, sex, familial betrayal, epic fraud and criminal conspiracies, sex, late night TV... oh, and did I mention sex?

Seriously, though, it's actually a rather important story for those of you who use email, and I'm assuming that, since you're online reading my blog, you do. But while the case, dry as it might be, is important to anyone who is concerned with government intrusion into their online privacy, the specifics of it are a little more, well, entertaining.

In a decision concerning the privacy of email users, the Sixth Circuit Court of Appeals ruled Tuesday in the case US-v-Warshak that the government must have a search warrant before it can read emails stored by email service providers such as Yahoo, Gmail and AOL. The court based its ruling on the position that email users enjoy the same reasonable expectation of privacy in their emails as in their conventional snail-mail.

The court's ruling stated:

"Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection... Police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call--unless they get a warrant, that is."

Unfortunately for Steven Warshak, this ruling, whatever long-term significance it may have for the rest of us, will have no effect on his criminal conviction. He was found guilty of 93 counts of conspiracy, fraud and money laundering and was sentenced to 25 years in prison and ordered to pay thousands in fines.

And here's where we get to the reason why no one is really talking about this case: embarrassment. Warshak's fraud was running Berkeley Premium Nutraceuticals, manufacturers and distributors of Enzyte. Yes, Enzyte, the natural supplement for "male enhancement," a euphemism for penile enlargement.

If you've watched late night TV in the last decade, you've seen their effective if somewhat wooden, commercials:

BPN claimed that Enzyet could increase penis size, girth, firmness, and improve sexual performance. It was the pill that gave Smiling Bob and his wife (and apparently every woman with whom he had any contact) those big grins. Warshak was running a scam, preying on people he thought were the perfect victims. He believed that his customers, no matter how dissatisfied with the Enzyte's inevitable lack of results, would never complain. Who, he reasoned, would be willing to publicly admit to needing his product? He never expected to end up doing hard time. And if customers did ask for their money back, his phone sales reps were taught how to stiff them. (Can I get a rim-shot here?)

Well, thousands of consumer complaints were made, though about the company's business practices, especially the "autoship" program that repeatedly charged their credit cards for refills even after they canceled their orders. When federal agents raided BPN, Warshak and four other people, including his 75-year-old mother, were indicted. Any future his firm would have would depend on the size of the fines. (Puh-dum-dum!)

Along with the guilty verdicts for Warshak and his mother, the company was required to forfeit $500 million, forcing it into bankruptcy. (It has since been acquired by another company, and Enzyte, despite the lack of any evidence supporting its efficacy, is still on the market.)

And so, despite growing concerns about protecting your privates... uh, I mean, privacy... on the internet, the embarrassment factor is preventing the media from telling you about this case. Which is a shame, really. Because it is a very important case. One might even say it was seminal.